Fernandez v Quince - [2009] QDC 57

DISTRICT COURT OF QUEENSLAND

CITATION:

Fernandez & Fernandez v Quince & Anor [2009] QDC 57

PARTIES:

Vesna Fernandez and Peter Fernandez

(Plaintiff)

V

Dirk Robertson Quince

(First Defendant)

And

Corporate Investment Co Pty Ltd ACN 100 349 193 trading as BRISBANE WEST REAL ESTATE

(Second Defendant)

FILE NO/S:

BD 3156 of 2007

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

19 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2009

JUDGE:

Searles DCJ

ORDER:

1. Claim dismissed

2. Plaintiff to pay the Defendants costs to be agreed or in default of agreement on a standard basis.

CATCHWORDS:

CONTRACT – meaning of “non refundable deposit monies”

COUNSEL:

S. Monks – Plaintiff

No appearance – 1^st Defendant

C. Muir – 2^nd Defendant

SOLICITORS:

Shand Taylor – Plaintiff

No appearance – 1^st Defendant

Forbes Dowling –2^nd Defendant

This case involves a short point concerning the payment of certain moneys from the trust account of the second defendant. It proceeded on the following agreed facts[1]:-
[1]Exhibit 1.

1.1.By a written contract dated 29 March 2007 (‘the Contract’) the First Defendant agreed with the Plaintiffs to sell to the Plaintiffs the land at 60 Kamala Drive Pullenvale in the State of Queensland, more formally known as Lot 42 on SP158077 in the County of Stanley, parish of Moggill (‘the Land’).
1.2.The Contract was unconditional upon its execution by the Plaintiff and the First Defendant.
1.3.The purchase price for the Land pursuant to the Contract was $595,000.00.
1.4.Pursuant to the Contract, a deposit (in part payment of the purchase price) would be paid by way of $100.00 payable when the Plaintiffs signed the Contract and $100,000.00 payable within 7 days from the date of the Contract.
1.5.The deposit holder pursuant to the Contract would be the Second Defendant.
1.6.The Contract contained the following relevant special conditions:

‘2. The Buyer acknowledges and agrees that as from the date whereupon the contract becomes unconditional, the Seller shall be entitled, unconditionally, to the non refundable deposit monies and the parties direct Brisbane West Real estate to release to the Seller the said deposit monies less the amount equivalent to the commission liability for the Seller or the Sellers Agent.
3. The non refundable amount of $200,000.00 will be paid by the Buyer, 6 months from the date of contract, to be released unconditionally to the Seller.’
1.7.Settlement date for the Contract would be 29 March 2008.
1.8.The Second Defendant is and at all material times was a duly incorporated company.
1.9.Until 30 June 2007 the Second Defendant traded under the name and style of ‘Brisbane West Real Estate’, being Queensland registered business name BN18793228.
1.10.The Contract included the Fifth edition of the Real Estate Institute of Queensland and Queensland Law Society’s standard terms of contract for houses and land (‘the Standard Terms’).
1.11.On 29 March 2007 in accordance with the Contract, the Plaintiffs paid to the Second Defendant a deposit of $100.00 in part payment of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fernandez v Quince

Details

AGLC: Fernandez v Quince [2009] QDC 57
Case: [2009] QDC 57
Decision Date: 19 March 2009

CaseChat Overview and Summary

In the case of Fernandez v Quince, the plaintiff, Mr Fernandez, brought an action against the defendants, Mr and Mrs Quince, to recover monies paid under a contract for the sale of property. The plaintiff claimed that he was entitled to a refund of the deposit paid to the defendants under the terms of the contract, which referred to the deposit as "non refundable deposit monies". The defendants, however, argued that the monies were not refundable as they had been paid under a clause in the contract that required the deposit to be paid upfront and forfeited if the contract was not completed. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was the interpretation of the contract between the parties. Specifically, the court had to determine whether the phrase "non refundable deposit monies" meant that the deposit was not refundable under any circumstances or whether it meant that the deposit was non-refundable only in certain circumstances, such as if the contract was not completed. The court had to consider the language of the contract, the surrounding circumstances, and the intentions of the parties when entering into the contract.

The court held that the phrase "non refundable deposit monies" meant that the deposit was not refundable under any circumstances. The court found that the language of the contract was clear and unambiguous and that there were no surrounding circumstances that suggested otherwise. The court also found that the intentions of the parties were that the deposit was to be forfeited if the contract was not completed. The court therefore dismissed the plaintiff's claim and ordered that the plaintiff pay the defendants' costs.

The court did not make any further orders.

Orders

Orders of the court

1. Claim dismissed

2. Plaintiff to pay the Defendants costs to be agreed or in default of agreement on a standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Fernandez & Fernandez v Quince & Anor [2009] QDC 57
PARTIES:	Vesna Fernandez and Peter Fernandez (Plaintiff) V Dirk Robertson Quince (First Defendant) And Corporate Investment Co Pty Ltd ACN 100 349 193 trading as BRISBANE WEST REAL ESTATE (Second Defendant)
FILE NO/S:	BD 3156 of 2007
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	19 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	11 March 2009
JUDGE:	Searles DCJ
ORDER:	1. Claim dismissed 2. Plaintiff to pay the Defendants costs to be agreed or in default of agreement on a standard basis.
CATCHWORDS:	CONTRACT – meaning of “non refundable deposit monies”
COUNSEL:	S. Monks – Plaintiff No appearance – 1^st Defendant C. Muir – 2^nd Defendant
SOLICITORS:	Shand Taylor – Plaintiff No appearance – 1^st Defendant Forbes Dowling –2^nd Defendant